IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MARK EDWARD HURST, 

 Plaintiff, 

vs. Civil Action 2:11-cv-1090 

 Judge Smith 

 Magistrate Judge King 

OHIO DEPARTMENT OF REHABILITATION 

AND CORRECTION, et al., 

 Defendants. 

 

REPORT AND RECOMMENDATION 

Plaintiff Mark Hurst, a former state inmate, filed this action on 

December 7, 2011, naming as defendants the Ohio Department of 

Rehabilitation and Correction (“ODRC”),1

 Gary Mohr, Mona Parks, Dr. 

David Weil, Karen Stanforth, Ralph Wilson, and six unidentified 

members of the “Collegial Review Committee” under 42 U.S.C. § 1983, 

alleging that defendants acted with deliberate indifference to his 

medical needs in violation of the Eighth Amendment to the United 

States Constitution. On December 3, 2012, the Court granted summary 

judgment in favor of the original defendants on all claims except the 

§ 1983 individual capacity claim against Dr. Weil. Opinion and Order, 

Doc. No. 52. See also Report and Recommendation, Doc. No. 47, p. 16. 

Plaintiff thereafter filed the Amended Complaint, Doc. No. 58, 

asserting claims against John Gardner and Dr. Andrew Eddy, the 

 

1

 ODRC was dismissed as a defendant on January 6, 2012. Order, Doc. No. 8, p. 

1. 

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previously unidentified members of the “Collegial Review Committee,” 

and Dr. Weil. 

Plaintiff alleged that defendants acted with deliberate 

indifference to his medical needs in violation of the Eighth Amendment 

to the United States Constitution by denying necessary surgery and 

rehabilitation for a rotator cuff tear. Amended Complaint, Doc. No. 

58, ¶ 9. On September 30, 2014, and over plaintiff’s objections, the 

Court granted summary judgment in favor of defendants on plaintiff’s 

remaining claims. Order, Doc. No. 115. See also Order and Report and 

Recommendation, Doc. No. 107. In granting summary judgment to 

defendants, the Court found that plaintiff “failed to produce evidence 

that Defendants acted with deliberate indifference” and that there is 

evidence “that nonsurgical management is appropriate in some cases.” 

Order, Doc. No. 115, pp. 1-2. The Court also concluded that the fact 

that plaintiff disagreed with the course of his medical treatment by 

defendants was not sufficient to establish their deliberate 

indifference to plaintiff’s serious medical need. Id. The Clerk 

entered final judgment the same day. Judgment in a Civil Action, Doc. 

No. 116. 

This matter is now before the Court for consideration of 

plaintiff’s October 1, 2014 motion to stay the court’s ruling on 

plaintiff’s objections to the August 7, 2014 Report and Recommendation 

until plaintiff can obtain additional medical evidence. Plaintiff’s 

Motion, Doc. No. 117. Because final judgment has been entered in this 

action, the Court will consider Plaintiff’s Motion by reference to the 

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standards of Rules 59(e) and 60 of the Federal Rules of Civil 

Procedure. 

Rule 59(e) requires that “[a] motion to alter or amend a judgment 

. . . be filed no later than 28 days after the entry of the judgment.” 

Fed. R. Civ. P. 59(e). A court may grant a motion to amend or alter a 

judgment if “there is a clear error of law, newly discovered evidence, 

an intervening change in controlling law, or to prevent manifest 

injustice.” GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 

834 (6th Cir. 1999) (internal citations omitted). 

Rule 60 provides in pertinent part as follows: 

On motion and upon such terms as are just, the court may 

relieve a party or a party’s legal representative from a 

final judgment . . . for the following reasons: . . . (2) 

newly discovered evidence that, with reasonable diligence, 

could not have been discovered in time to move for a new 

trial under Rule 59(b) . . . . 

Fed. R. Civ. P. 60(b). The decision to grant or deny a motion for 

relief from judgment under Rule 60(b) falls within the sound 

discretion of the trial court. Futernick v. Sumpter Twp., 207 F.3d 

305, 313 (6th Cir. 2000) (citing United States v. Universal Mgmt. 

Servs., Inc., 191 F.3d 750, 757 (6th Cir. 1999)). “The general 

purpose of Rule 60(b) . . . is to strike a proper balance between the 

conflicting principles that litigation must be brought to an end and 

that justice must be done.” Charter Twp. of Muskegon v. City of 

Muskegon, 303 F.3d 755, 760 (6th Cir. 2002) (quotations and citations 

omitted). 

 In the case presently before the Court, plaintiff seeks relief 

from judgment so that he can obtain and submit as evidence the results 

of a September 26, 2014 MRI of his shoulder and a recommended course 

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of treatment based on those MRI results. Plaintiff’s Motion, p. 2. 

Plaintiff represents that he lacked the financial resources to obtain 

an MRI prior to September 26, 2014, and that the MRI is “crucial to 

this case.” Id. at pp. 2-3. According to plaintiff, the MRI was 

necessary to determine if his rotator cuff can be surgically repaired. 

Id. at p. 3. This Court concludes that plaintiff has not demonstrated 

grounds for relief under Rule 59 or 60. 

 By his current motion, plaintiff seeks to submit new evidence 

(that he has not yet obtained) that may or may not demonstrate that 

his rotator cuff can be surgically repaired. See Plaintiff’s Motion, 

p. 3. However, the proposed new evidence is not relevant to the 

Court’s determination that plaintiff “failed to produce evidence that 

Defendants acted with deliberate indifference” or that there is 

evidence “that nonsurgical management is appropriate in some cases.” 

The evidence that plaintiff hopes to offer simply would not alter the 

Court’s summary judgment analysis. The proposed new evidence would 

therefore be insufficient to create a genuine issue of material fact. 

 Accordingly, it is RECOMMENDED that Plaintiff’s Motion, Doc. No. 

117, be DENIED. 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

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must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981).

October 3, 2014 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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